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Keyspan Energy Development Corporation - Issues Ruling, April 18, 2001

Issues Ruling, April 18, 2001

NEW YORK STATE BOARD ON ELECTRIC
GENERATION SITING AND THE ENVIRONMENT

Department of Public Service

Case No. 99-F-1625

Application of KeySpan Energy for a Certificate of Environmental Compatibility and Public Need to
Construct and Operate a 250 Megawatt Cogeneration Facility in Long Island City, Queens, New York

AND

Department of Environmental Conservation

Case No. 2-6304-00024/00004

SPDES No. NY 0005193

In the Matter of

the Applications for: (1) a State Pollutant Discharge Elimination System (SPDES) permit pursuant to
Environmental Conservation Law (ECL) Article 17 and Parts 750 et seq. of Title 6 of
the New York Compilation of Codes, Rules and Regulations (6 NYCRR); 2) water quality certification
pursuant to the Federal Clean Water Act §§ 301, 302, 303, 306 and 307;
(3) a Clean Air Act (CAA) Title V permit pursuant to ECL Article 19, 6 NYCRR Part 201 and Subparts
201-6.1 and 231-2; (4) CAA Title IV permit pursuant to 40 Code of Federal Regulations (CFR)
§ 76.6(a)(3); (5) Prevention of Significant Deterioration (PSD)Conditions pursuant to 40 CFR
§§ 52.21 and 124.Part 624 Issues Ruling

(Issued April 18, 2001)

HELENE G. GOLDBERGER, Administrative Law Judge

Introduction

Pursuant to Public Service Law (PSL) § 165(2), the presiding examiner must issue an order identifying the issues to be addressed at the PSL Article X hearing. This order was issued by the presiding and associate examiner on March 26, 2001. In response to a late filing of their Article X issues statements by the Queens Borough President's office and the Coalition Helping to Organize a Kleaner Environment (CHOKE) (collectively, Queens herein), the examiners also issued rulings dated April 10, 2001. Section 624.4(b)(5) of 6 NYCRR directs the DEC associate examiner to rule on requests for full party status, amicus status, and to determine which, if any, issues proposed for adjudication meet the requirements of adjudicable issues as provided in 6 NYCRR § 624.4(c). This issues ruling finds that there are no adjudicable issues presented by petitioner Queens concerning the DEC air and water permitting process pursuant to Part 624.

At the issues/prehearing conference convened on March 1, 2001, attorney Hugh Weinberg representing the Queens Borough President requested additional time to submit a petition for party status on behalf of itself and CHOKE pursuant to Part 624. ALJ Goldberger agreed to give these intervenors until March 15 to submit their petition; and then with the consent of the applicant and Department of Environmental Conservation (DEC or Department) staff, the ALJ agreed to the Borough President's request of March 13, 2001 for additional time to submit the petition. In her March 14 letter, ALJ Goldberger provided Queens until March 26, 2001 to make its submission with responses by DEC staff and KeySpan Energy, Inc. (KeySpan) due on April 4, 2001.(1) In order to fully address the matters raised by the Queens petition, the issues conference was reconvened on April 5 at 10:45 a.m. at the offices of the Department of Public Service at One Penn Plaza in Manhattan.

In submissions dated February 16 and February 22, 2001 and March 16, 2001, the applicant and staff also identified several matters that require resolution prior to DEC staff's determination that the air and water permits may be approved. These issues were discussed at the March 1 and April 5 meetings of the issues conference. In addition, the parties have met and have provided status reports to the administrative law judges and the issues conference participants on these matters dated March 21, 2001 and April 11. These concerns appear resolved as set forth in more detail below. By notice dated March 21, 2001, KeySpan notified Department of Public Service (DPS) Secretary Janet Hand Deixler that settlement of all the issues that were identified at the March 1 conference is possible.

Project Description

In its application of July, 2000, KeySpan has proposed to construct and operate the Ravenswood Cogeneration Facility, a 250 megawatt (MW) electric generating facility on 2.5 acres at its existing generating station that is located on a 27.6-acre site along the East River in Long Island City, Queens, New York. This facility will consist of a combustion turbine, a heat recovery steam generator (HRSG) with a duct burner for supplemental firing, and a steam turbine. The steam produced by the HRSG will be used to drive the steam turbine generator to produce additional electricity and this steam may also be used to supply steam to Con Edison's steam distribution system. Selective catalytic reduction will be used to control nitrogen oxide (NOx) emissions and an oxidation catalyst will be used to control carbon monoxide (CO) and volatile organic compounds (VOCs) which are precursors of ozone. A single 400 foot stack is planned and an air-cooled condenser will be used to cool exhaust from the steam turbine generator. KeySpan expects to operate at greater than 80% capacity but may operate at combustion turbine loads down to 50%. The turbine will be fueled by natural gas and up to 30 days of low-sulfur (0.04%) kerosene per year, while the duct burner will be fueled exclusively by natural gas.

KeySpan proposes to use existing infrastructure at this site including an adjacent electric substation, existing gas transmission line, and East River discharge structures. KeySpan maintains that following operation of the proposed facility, the combined discharge of wastewater from the newly constructed facility and the existing plant will meet the thermal discharge limits found in the existing SPDES permit for Ravenswood and will not cause the East River to violate water quality standards. The applicant proposes to use the New York City Water Distribution System for its water supply requirements and thus, no East River water is required.

Legislative/Public Statement Hearing

As provided in notices issued by the Secretary to the Siting Board and the DEC Office of Hearings and Mediation Services, a joint legislative/public statement hearing was convened at 7:00 p.m. on February 28, 2001 at P.S. 112 in Long Island City. Over the course of the evening, between 50 and 70 people were in attendance.(2) Brian McCabe of KeySpan provided a summary of the proposed facility and attorney Jennifer Hairie of DEC provided a brief explanation of the Department's jurisdiction over air and water pollution control permits related to the proposed facility. Out of the 21 additional speakers, four of the commenters spoke in favor of the project based upon projected needs for electricity in areas of the Borough of Queens and New York City that were undergoing revitalization.

The other speakers, including representatives of elected officials such as Assemblyman Michael Gianaris and Speaker Vallone, raised concerns about air pollution and the addition of emissions, the need to repower old power plants in lieu of building new facilities, and health impacts such as respiratory disease. In addition, concerns related to noise, loss of recreational opportunities, and odors were also raised by these individuals. A number of the speakers who oppose the project did state that KeySpan had done a good job in meeting with the community and modifying the project to address certain concerns but that these efforts were not sufficient to overcome all the potential negative impacts. In addition to the oral comments received at this hearing, there were additional written statements that were provided and distributed subsequently to those participating in these proceedings. The transcript of this hearing was received on March 19, 2001 and corrections to that transcript were sent by ALJ Goldberger on March 20, 2001 to those who requested a copy of the transcript.

Joint Prehearing/Issues Conference - March 1

On the following day, March 1, pursuant to the public notices, the ALJs convened a joint issues/prehearing conference at DPS offices at One Penn Plaza in Manhattan. KeySpan was represented by Michael Gerrard of Arnold & Porter; DEC staff was represented by Jennifer Hairie, Esq. and Gail Hintz, Esq.; DPS staff was represented by Jean McDonnell, Esq.; the Queens Borough President was represented by Hugh Weinberg, Esq.; Katherine Kennedy, Esq. appeared on behalf of the Natural Resources Defense Council (NRDC); Daniel Gutman represented the East River Environmental Coalition; Ms. Beth Cullinane appeared on behalf of herself; Jay Kooper represented the New York City Economic Development Corporation; Dr. Donald Dodelson appeared on behalf of the Community Environmental Center, Inc., Kevin Gleason, Esq. represented the New York State Department of Health (DOH); James D. Lyons, Esq. appeared on behalf of the New York Power Authority (NYPA); Mario D'Elia appeared on behalf of CHOKE; and Richard J. Koda appeared on behalf of the Utility Workers Union of America, AFL-CIO. There were a number of other individuals present in the room including technical staffs and consultants of DEC and KeySpan.

DEC Permitting Issues - March 1

At the issues conference on March 1, ALJ Goldberger provided a brief explanation of the DEC hearing process that governs the air pollution control and SPDES permit application proceedings. A summary of the discussions that ensued with respect to these applications is contained in ALJ Goldberger's letter of March 7, 2001 which is annexed hereto as Appendix A. KeySpan and DEC staff provided ALJ Goldberger with status reports dated March 21 on the outstanding matters that were raised in letters preceding the issues conference submitted by both parties and discussed at the issues conference. In these letters, the parties confirmed the following:

  1. Air Pollution Control Permit Issues
    1. ERCs. KeySpan represented that it has signed a contract to acquire ERCs for VOCs from the 3M Corporation in Pennsylvania. DEC staff was awaiting the confirmation of the Pennsylvania Department of Environmental Protection (PDEP) that these credits may be transferred to New York State. KeySpan also stated that it had executed an agreement concerning the NOx ERCs and DEC staff expected to receive confirmation on both sets of credits at the same time.
    2. Record of Compliance. KeySpan and DEC staff met to discuss the alleged violations at the West Babylon facility and both parties represented that they were close to an agreement. DEC staff was also waiting for KeySpan's response to its interrogatories regarding other record of compliance issues.
    3. Ammonia Slip. KeySpan was performing a technical review to determine if it can achieve an ammonia emissions limit of less than 10 ppm.
    4. Start-Up and Shut-Down. KeySpan was discussing with GE, its turbine supplier, as well as its contractor, Stone and Webster, the matter of expected emissions during these periods.
    5. Opacity Limit. Neither party provided a specific update on this matter.
    6. Protocol for Determining Sulfur Content in Fuel. Again, this matter was not specifically addressed in the status reports.
    7. Particulate Matter - PM10. In its letter of March 16, 2001 concerning its identification of potential issues for hearing in the Article X proceeding, Ms. Hairie requested that KeySpan provide additional information on how emission estimates of PM10 were derived based upon its finding that emissions limits for particulate matter are higher in the Ravenswood draft permit than for other proposed Article X facilities. There was no further information provided by the parties on the status of this potential issue.
  2. SPDES Permit Matters
  3. Weekly Monitoring.KeySpan was evaluating the feasibility of DEC's proposal on weekly monitoring.

As described below, at the April 5 conference, the DEC staff and KeySpan counsel represented that these matters appear resolved. However, in the event that there is not such agreement, §§ 624.4(c)(i) and (ii) provide that an issue is adjudicable if it relates to a dispute between the Department staff and the applicant over a substantial term or condition of a draft permit or concerns a matter that is deemed by staff as sufficient to deny the permit. Accordingly, ALJ Goldberger directs that by April 27, 2001 the parties provide their positions on any outstanding matters so that a determination can be made as to whether a hearing on any or all of these issues is necessary. Should it be necessary to adjudicate any of these matters, to the extent possible, the parties will be governed by the schedule set forth in the procedural ruling dated March 12, 2001 so that hearings concerning DEC permitting and Article X certification issues are held jointly.

As stated at the issues conference and in the March 7 letter, no petitions for party status were filed in accordance with the hearing notice. However, as noted on page 2, Queens was given an extension of time to file their petition which was received by the DEC Office of Hearings and Mediation Services (OHMS) on March 26. The continuation of the issues conference on April 5 was largely devoted to discussion of this petition. KeySpan and DEC staff submitted post-issues conference letter briefs on April 12, 2001 in further response to the Queens petition. Queens also submitted a post-issues conference brief dated April 12, 2001.

April 5th Issues Conference

The DEC issues conference continued on April 5, 2001 at 10:45 a.m. at One Penn Plaza in Manhattan. Representing the active participants at this proceeding were Jennifer Hairie, Esq. and Leon Sedefian on behalf of the DEC staff; attorneys Michael Gerrard and Andrew Ratzkin on behalf of the applicant, KeySpan; and Hugh B. Weinberg, Esq. on behalf of Queens. Mr. Weinberg was assisted by a representative of Synapse Energy Economics, David Schlissel, Esq. The principal purpose of this meeting was to address the petition of Queens for party status in the Department's permitting process. Prior to this discussion, KeySpan and DEC staff provided an update on the issues they were attempting to resolve between them.

Status of Outstanding Issues between KeySpan and DEC staff

  1. Air Pollution Control Permit Issues
    1. ERCs. Mr. Gerrard provided that the State of Pennsylvania had sent a letter certifying that KeySpan had properly acquired the emission reduction credits from 3M Corporation. In its letter of April 11, 2001, DEC staff confirms that the "Use of ERCs" form has been received by the Department for both volatile organic compounds (VOCs) and nitrogen oxides emissions and that the Pennsylvania letter was received as well. The staff states that KeySpan has taken the necessary steps to comply with Subpart 231-2 of 6 NYCRR and the notice for public comment on the ERCs will be in the April 18 Environmental Notice Bulletin.
    2. Record of Compliance. KeySpan and DEC staff met on March 19 and continue to discuss resolution of the alleged violations at the West Babylon facility. The parties represent that they are close to an agreement although it has not been committed to writing yet. DEC staff is also waiting for KeySpan's response to its March 14 interrogatories regarding KeySpan's record of compliance.
    3. Ammonia Slip. KeySpan has agreed to the 5 parts per million(ppm) limit thus resolving this issue.
    4. Start-Up and Shut-Down. DEC staff has provided KeySpan with EPA guidance on these events that provide criteria on how to address any accedences. My understanding is that this constitutes a resolution of this matter; if it does not, the parties should so note in the April 27 filing.
    5. Opacity Limit. KeySpan has agreed to install a continuous opacity monitor and this constitutes a resolution of this matter.
    6. Protocol for Determining Sulfur Content in Fuel. The parties have agreed that KeySpan can test the source tank prior to each series of fuel deliveries. KeySpan will seal the tank from incoming fuel following purchase of the entire tank's content to ensure consistent fuel quality.
    7. Particulate Matter - PM10. Staff is satisfied with KeySpan's production of information related to its equipment that indicates the types of emissions that will be expected from the equipment including total suspended particles as well as calculations and how the applicant arrived at the PM-10 limits. There was no further information provided by the parties on the status of this potential issue.
  2. SPDES Permit Matters
  3. Weekly Monitoring. KeySpan has agreed to DEC's proposal on weekly monitoring.

Queens Petition for Party Status in DEC Permitting Hearing

In accordance with 6 NYCRR § 624.3, the notice of hearing for this application provided instructions as to how and when to file a petition for party status with the Department concerning the air and water pollution control permits which KeySpan must obtain prior to obtaining Article X certification. On January 25, 2001, the OHMS sent the notice to those included on the Article X service list including the Queens Borough President's office and CHOKE. The notice was also published in the January 27, 2001 editions of the New York Post, New York Times and the January 24, 2001 edition of the Environmental Notice Bulletin. The notice required that petitions for party status be received by the OHMS by February 21, 2001.

Section 624.4(c) sets forth the standards for an adjudicable issue: (i) it relates to a dispute between the Department staff and the applicant concerning a substantial term or condition of the proposed permit; (ii) it relates to a matter cited by the staff as a basis to deny the permit; or (iii) is raised by an intervenor and is both substantive and significant.

Section 624.4(c)(2) defines substantive as ". . . sufficient doubt about the applicant's ability to meet statutory or regulatory criteria applicable to the project . . ." Section 624.4(c)(3) defines significant as having " . . . the potential to result in the denial of a permit, a major modification to the . . . project or the imposition of significant permit conditions . . ."

In addition to these requirements, §§ 624.5(b)(1) and (2) describe the mandated contents of a petition: identification of the proposed party; statement of the petitioner's environmental interest; identification of interest related to the statutes administered by the DEC; statement of whether the petition is for amicus or full party status; the precise grounds for opposition or support; identification of an issue that meets the criteria in § 624.4(c); and an offer of proof including the witnesses, nature of the evidence to be presented and the grounds upon which the assertion is made with respect to that issue.

Queens did not submit a timely petition and instead requested an extension to submit a petition at the March 1 conference. Mr. Weinberg stated that he did not receive the hearing notice and therefore, was not aware of the requirements for filing a petition. I agreed to provide Queens with an extension of time on two occasions and Queens made its submission to this office on March 26, 2001.

Environmental Interest and Timeliness of Petition

Neither the applicant nor the Department staff had objections to the petition of Queens based upon environmental standing. It is clear that the Borough President by virtue of her office has demonstrated adequate environmental interest.

The next matter raised by the applicant concerns the tardiness of the Queens petition. KeySpan cites to 6 NYCRR § 624.5(c) that states that late-filed petitions will not be granted without a demonstration of good cause for the late filing and a demonstration that the late filing will not significantly delay or unreasonably prejudice the other parties. Based upon the public notice of the hearing and issues conference and contacts that the Borough President's office had with KeySpan prior to the notice and hearing, the applicant argues that it clearly had sufficient notice and the excuses submitted by Queens are inadequate. In addition, KeySpan provides that because KeySpan and DEC staff have reached conceptual agreement on virtually all the remaining issues, any finding that the issues proposed by Queens should be adjudicated would significantly delay these proceedings thereby prejudicing the applicant.

The Department staff, while noting its concern regarding the efficiency of these proceedings, also provided that full public participation was important and the staff wished to address the matters raised by Queens on the merits. TR 158(3).

There is no question that the OHMS sent copies of the notice of hearing on January 25, 2001 to the Queens Borough President and CHOKE. The OHMS obtained a copy of the Article X service list from DPS prior to mailing the notices and both the Queens Borough President and Mr. Gigantiello of CHOKE appear on this list. The explanations of the Borough President's office are not strong; however, given the large constituency of this office I have decided to address the merits of the petition. With respect to prejudice to the applicant, there will be none for two reasons. First, I have not found any issues that require adjudication. Second, even if I were to find issues, this event alone would not be prejudicial. To find so would mean that even if the Queens petition was timely there would be prejudice if these intervenors did not settle their issues. Unless there was an entire revamping of the schedule set forth at the March 1 conference and in the March 12, 2001 ruling in this combined Part 624/Article X proceeding, there would be no delay.

Issues Proposed for Adjudication by Queens

Overall, Queens raised the matter of cumulative impacts caused by the proposed facility in combination with emissions from existing facilities. Queens states that KeySpan's proposal fails to demonstrate compliance with 6 NYCRR § 231-2.4(a)(2)(ii) which requires that the applicant submit ". . . an analysis of alternative sites, sizes, production processes, and environmental control techniques for such proposed source which demonstrates that benefits of the proposed source significantly outweigh the environmental costs imposed as a result of its location, construction or modification within New York State; . . ."

SCR v. SCONOx Controls

As a first example of this failure to comply with § 231-2.4(a)(2)(ii), Queens challenges KeySpan's decision to use selective catalytic reduction (SCR) to control NOx rather than SCONOx - a system which reduces emissions without the use of ammonia. Petitioner Queens argues that this choice of equipment would reduce particulate emissions as well as eliminate risks associated with the use of ammonia.

The responses of the applicant and DEC staff are that SCONOx is not yet a technology that has been used in plants of over 30 megawatts. In addition, it is the understanding of KeySpan that the plants in which it is used are fired by natural gas and not kerosene which is the back-up fuel proposed for the Ravenswood facility. Mr. Gerrard explained that sulfur in the fuel tends to foul the SCONOx catalyst and thereby make it ineffective. Therefore, if KeySpan used this technology it would have to scrub out all the sulfur from the back-up fuel and the natural gas. This process too has environmental effects such as the production of by-products -- hydrogen or sulphur dioxide -- and an effect on the gas odorant that could cause problems with gas leak detection. Mr. Gerrard also cited to maintenance difficulties, safety issues involving hydrogen and capacity loss of steam as well as physical space issues. See, Ravenswood Application, Vol. IV, pp. 4-9 - 4-11.

In its submission of April 12, Queens provides that the regulatory definition of lowest achievable emissions reduction (LAER) - which is the standard applied for reducing a pollutant like NOx in a severe non-attainment area - includes the use of technology that "can reasonably be expected to occur in practice." 6 NYCRR § 200.1(ak). Queens cites to the issues ruling In the Matter of Consolidated Edison (East River), Issues Ruling dated March 15, 2001, in which the administrative law judge found that SCONOx was an appropriate issue for adjudication as this facility is located in an area that is in non-attainment for both ozone (NOx is a precursor of ozone) and particulates. In addition, Queens cites to two facilities in California - one is a 32 MW power plant that is currently using the SCONOx technology and one is a proposed 510 MW facility. Queens also states that this technology has been selected for a 43 MW commercial power plant in Redding, California. Queens also cites to the U.S. Environmental Protection Agency's (EPA) apparent support for this technology in EPA Regions 1 and 9.

In the references noted it appears that the applications are for gas-fired facilities. In addition, while there has been EPA and vendor endorsement of the use of this technology in larger plants, there is no such facility currently using the technology. The staff and the applicant point to the RACT/BACT/LAER Clearinghouse Search Results (March 1, 2000) of different large combustion turbines in the U.S. and the air pollution control technology used to meet those different standards. The lowest limit that is defined in that Clearinghouse is 2.0 ppm of NOx and SCR was utilized. See, PSD Application, Appendix F. Thus, SCR meets the limits for LAER for control of NOx. At the issues conference, upon questioning by the applicant, Mr. Schlissel, the Queens' consultant, was equivocal in the petitioner's endorsement of SCONOx to control NOx - "[c]ertainly the performance of SCONOX we would expect would be no worse than SCR and it might be better."

The Borough of Queens is in attainment for particulates and therefore, KeySpan was not required to use LAER to control this pollutant.(4) Rather, emission of particulates is governed under the prevention of significant deterioration (PSD) program and technology employed for this purpose is best available control technology (BACT).(5) All parties agree that by using SCR, particulate production will be increased. However, the applicant did perform a net benefit analysis to demonstrate that the facility would not significantly impact the non-attainment area. See, PSD Application, pp.1-6 - 1-7; Appendices A, B, C, Tables 2a, 2b. The applicant proposes to use natural gas with low-sulfur kerosene as back-up for up to 30-days for the combustion turbine and natural gas only for the duct burner as BACT for control of particulates. See, PSD Application, p. 1-3.

KeySpan has adequately performed the alternatives analysis required by 6 NYCRR § 231-2.4(a)(2)(ii) in the application by comparing the available technologies and concluding reasonably that the use of SCONOx in the Ravenswood facility would be too risky given the lack of experience with this technology by other similar facilities in the country. (6) While the ALJ in the Con Edison case came to a different conclusion -- the difference is based upon the record specific to that proceeding -- Manhattan is in non-attainment for particulates. See, Consolidated Edison (East River), supra., p. 29.

In contrast, ALJ Casutto found in the Mirant Bowline, LLC issues ruling of March 30,2001, p. 19 that "[t]he SCONOx technology is not an alternative technology that could provide an emission limitation reasonably expected to occur in practice for turbines larger than 25 MW." On that basis, the ALJ determined that consideration of SCONOx was not a substantive and significant issue suitable for adjudication. I find likewise. The use of SCR at the Ravenswood facility will meet the regulatory requirements. And, as noted by the applicant at the issues conference, this facility, as a source of electric power for the public, cannot be the basis for an experiment with a technology that heretofore has not been proven in such large plants. If the experiment should fail, counsel Gerrard pointed out that this would lead to "two equally unpalatable options - [d]on't let the facility operate and do without the 250 megawatts, or run the facility without the NOx controls." TR. 172. Accordingly, I find that there is no issue for adjudication with respect to the use of SCR rather than SCONOx.

Proposed Stack Height

Queens proposes in its petition that KeySpan's stack height of 400 feet is less than the EPA good engineering practice (GEP) recommended value of 537.5 feet and therefore, they seek to present evidence why public health problems caused by lower stack height outweigh other concerns such as aesthetic ones.(7) In 1985, EPA promulgated final regulations for GEP stack height that limit the degree a source can increase stack height or merge exhaust gas streams to enhance dispersion. The regulations provide a formula to preclude the effects of aerodynamic downwash from nearby structures. EPA provides guidance for determining GEP stack height in order to assess whether building downwash will occur in Guidance for Determination of Good Engineering Practice Stack Height (Technical Support Document for the Stack Height Regulations), (EPA-450/4-80-023R, June, 1985). EPA also has the Building Profile Input Program (BPIP) to generate wind direction specific building dimensions to calculate downwash for air modeling. In DEC's Air Guide 26 concerning air modeling procedures, the document notes that DEC looks to the GEP formula for appropriate stack height but if that is not possible based upon aesthetic, FAA, engineering or local zoning restrictions, the permit application may provide justification.

The structures at Ravenswood that will have the controlling effect on the single stack from this facility are the air cooled condenser on top of the proposed turbine building. The combined height of these structures is 215 feet above grade level and would result in the 537.5 feet stated above. KeySpan's proposal for a 400-foot stack for the turbine is based upon an analysis that concludes that this "height [is] sufficient to allow the plume to escape the downwind, turbulent 'cavity' zone caused by the . . . air-cooled condenser on top of the turbine building." The application provides that the cavity height is 322.5 feet and therefore, the proposed stack height is sufficient to keep the plume out of the cavity. See, PSD Application, Vol. IV, pp. 7-8 - 7-9; Appendix to PSD Application, Table 7-3.

In response to the Queens petition on this matter, KeySpan provides that to go above 400 feet, the applicant would have to change the physical structure of the stack from steel to concrete or masonry and this would extend the base from 21 feet to 37 feet. Apart from the added expense, the applicant states that it might also have to acquire more land to accommodate this structure. TR 192-193.

Ms. Hairie, on behalf of staff, explained that the Department does not regulate stack height per se but must seek to ensure that there are not significant effects from criteria pollutants carried to ground level. TR 195-199.

In response, Mr. Schlissel, on behalf of Queens stated that the proposed stack height, because it is lower than the EPA GEP figure, raised a presumption in the intervenors' minds of an issue that requires further investigation. However, Queens did not present any specific information to demonstrate that the analysis that was done was flawed nor to show that the stack height selected would cause a significant environmental problem. TR 196.(8)

Where, as here, the Department staff has reviewed the application and found it meeting regulatory requirements, the burden of persuasion that substantive and significant issues exist is on the intervenors. See, In the Matter of the Application of LILCO, Commissioner's Decision (November 1, 1988) citing Matter of Halfmoon Water Improvement District No. 1, Interim Decision of the Commissioner (April 2, 1982). Accordingly, I do not find that the Queens presentation with respect to stack heights is sufficient to find this to be an adjudicable issue.

Adequacy of Particulate Controls

Queens sets forth in its petition that other than choice of fuels, the applicant has not proposed other technologies for particulate control. In addition, citing to Table 5-3 of the Application, Queens found that the project's potential PM-10 emission rate of 203 tons per year was significantly higher than the PSD significant emission increase level of 15 tons per year. As I noted at the issues conference, matters relating to the PSD application are not subject to an adjudicatory hearing by the Department. The PSD program is administered by DEC pursuant to federal regulation and is not subject to either the Uniform Procedures Act (Article 70 of the Environmental Conservation Law [ECL]) or the State Administrative Procedures Act (SAPA). See, Matter of the Application of Ramapo Energy Limited Partnership, ALJ Ruling (April 9, 2001).

At the issues conference, Ms. Hairie explained how comments regarding the PSD application are received by DEC, addressed in a responsiveness summary, and then, if pursued by a party, addressed further by the Environmental Appeals Board which is part of EPA. She stated also that while no comments had yet been received by DEC regarding the PSD application and conditions (except those submitted by the applicant), the Department could receive any comments from Queens with respect to further controls. Ms. Hairie stated that good combustion efficiency was the appropriate method of control. TR 206, 208-209. With respect to the Queens comments on the comparison of 203 tons versus 15 tons of particulates per year, Ms. Hairie explained that the 15 tons was a de minimis threshold number that required anything above that amount to be subject to major air facility requirements.

The applicant agreed that the matter of PSD conditions was not subject to a DEC adjudicatory hearing. Moreover, KeySpan asserted that alternative controls mentioned by Queens such as precipitators are appropriate for oil-fired facilities unlike Ravenswood which is to be primarily natural gas with low sulfur fuel for back-up. Both staff and the applicant agreed that this choice of fuels was the most effective means of controlling particulate emissions and the response of Queens was to suggest that it's possible that this is the case but more investigation should be done. TR 208, 209, 211-212; Application, Appendix F.

There is no provision in DEC's regulations for adjudication of PSD conditions and therefore (apart from the fact that the intervenor has not provided any information upon which to base a finding that this matter is substantive and significant), I do not find an adjudicable issue.

Sulfur Content of Fuel

Queens provided in their petition that the use of 0.2 percent sulfur distillate fuels will produce SOx emissions. The staff and applicant noted that Queens was mistaken because the applicable sulfur limit KeySpan is to use is 0.04 percent sulfur distillate. TR 215-217, Application, p. 3-26, PSD Application p. 2-2, Draft Permit Condition 47. Accordingly, this matter was resolved among the parties and there is no further need to address it in a hearing.

Health Impacts Related to PM-10 and Non-criteria Pollutant Emissions

The Queens petition raises here again the matter of the 203 tons per year of particulates and potential relationship to high asthma levels in northwestern Queens as well as effects from certain non-criteria pollutants such as 1,3-Butadiene. With respect to this latter pollutant, Queens stated that the application appears to indicate that emissions will be greater than that for the existing facility. Accordingly, Queens maintains that the benefits of the proposed facility do not outweigh the negative impacts pursuant to 6 NYCRR § 231-2.4(a)(2)(ii).

Once again, because the Borough of Queens is in attainment for particulates, Part 231 does not govern their emission in this application and the section cited by Queens is inapplicable. Regarding non-criteria pollutants, the State Department of Health considers this matter. Ms. Hairie pointed out that Part 212 of 6 NYCRR also address non-criteria pollutants but this regulation does not apply to combustion sources. See, 6 NYCRR § 212.1(b)(7). Thus, these matters are not appropriate for this DEC permit proceeding. Ordinarily, with respect to the non-criteria pollutants, the State Environmental Quality Review Act would control. As here, because Article X substitutes for that process, it is in that proceeding where such issues could be addressed. And, Queens has been granted funding to pursue this matter in the Article X proceeding and to introduce direct testimony at the scheduled hearing on these concerns by the presiding examiner in his April 10 ruling.

The applicant noted at the issues conference that the fact that the new facility is projected to emit certain pollutants at higher levels than the existing facility is not indicative of any exceedence of any health-based criteria. KeySpan noted that in the application a comparison of concentrations of non-criteria pollutants to DEC and DOH guideline concentrations provides that emissions will be below these thresholds. See, Application, Table 5.22; TR 223-224. Specifically with respect to 1,3 Butadiene, a footnote to the table indicates that the compound was not detected by EPA (which provides the figures for stationary gas turbines), but the Agency appears to have assumed that it was present. TR 225. In addition, staff and the applicant noted that these figures are based upon potential to emit rather than actual emissions that are derived from the existing facility and that distinction also may play a role in showing some higher numbers. TR 226.

As these matters do not relate specifically to the DEC air permitting criteria, they are not appropriate for adjudication in this proceeding.

Overall Cost/Benefit Analysis Pursuant to Part 231

Without specifying an aspect of the permit or application, Queens makes the general statement at the conclusion of its petition that the petitioners intend to present evidence that the cost of this facility outweighs its benefits because the northwest Queens community is already overburdened with power plants and other highly polluting uses. The applicant responded by stating that the Queens submission on this aspect was deficient because it did not address the benefits of the project. In addition, KeySpan provides that the PSD application contains an analysis of this issue in sections 5.3, 5.4 and 5.50 as well as an alternate analysis in Volume II, section 16 of the Article X application.

While 231 does provide for a balancing analysis, one has been done by KeySpan and there is no specific information provided by Queens that indicates any failing of that analysis. This is in contrast to the situation in Consolidated Edison (East River) , Issues Ruling, March 15, 2001 in which the ALJ O'Connell found substantive and significant issues related to an analysis pursuant to 6 NYCRR § 231-2.4(a)(2)(ii). In the Con Ed case, the intervenors raised specific alternative sites for splitting up the proposed facility that had not been adequately considered by the applicant although these sites are owned by the applicant.(9)

With respect to PSD matters, those must be addressed through comments to EPA and not in an adjudicatory hearing. Finally, to the extent that these matters relate to concerns addressed by the Siting Board, those must be addressed in the Article X proceeding. See, Public Service Law § 168.

I do not find any adjudicable issues with respect to this proposed subject.

Conclusion

Based on the above discussion, I find that the Queens petitioners have not presented any substantive and significant issues for adjudication. Party status is therefore denied to Queens. I direct that the applicant and DEC staff provide to me by April 27, 2001 their determination as to whether an adjudicatory hearing is necessary on any outstanding issues with respect to the air permits.

Appeals

A ruling of the DEC administrative law judge to include or exclude any issue for adjudication, a ruling on the merits of any legal issue made as part of an issues ruling, or a ruling affecting party status may be appealed to the DEC Commissioner on an expedited basis and must be filed to the DEC Commissioner within five days of the disputed ruling. 6 NYCRR §§ 624.8(d)(2); 624.6(e)(1). Due to the complexity of these proceedings, I am allowing that any appeals must be in writing and received by the DEC Commissioner (Office of the Commissioner, NYS Department of Environmental Conservation, 50 Wolf Road, Albany, New York, 12233-1010) before 4:00 p.m. on May 2, 2001. Replies are authorized and must be received by the DEC Commissioner before 4:00 p.m. on May 9, 2001. Appeals should address the administrative law judge's ruling directly rather than merely restate a party's contentions. Parties shall serve each other by the same dates as filing is required in the Commissioner's office. This appeals schedule does not modify the schedule set forth in the established hearing schedule dated March 12, 2001. Appeals and replies should be submitted to the Department in triplicate with two of the three copies to ALJ Goldberger - no faxes or e-mail submissions allowed or accepted.

_____________/s/_____________
Helene G. Goldberger
Administrative Law Judge

Dated: April 18, 2001
Albany, New York

TO: Hugh B. Weinberg, Esq.
Counsel to the Queens Borough President
120-55 Queens Boulevard
Kew Gardens, New York 11424-1015

Jennifer Hairie, Assistant Counsel
NYSDEC - Division of Legal Affairs
50 Wolf Road
Albany, New York 12233

Michael Gerrard, Esq.
Andrew Ratzkin, Esq.
Arnold & Porter
399 Park Avenue
New York, New York 10022-4690

Article X Ravenswood Service List (annexed hereto)

1 Apparently due to some technical difficulties, the Borough President's office was not able to timely serve the applicant and DEC staff with its petition although ALJ Goldberger did receive it on March 26 via e-mail. Accordingly, KeySpan and the staff did not have the agreed-upon ten days to respond and in lieu of that procedure, the ALJ provided until April 12, 2001 for post-issues conference submissions by these parties.

2 Several of the speakers indicated that more people from the Queensbridge Houses (which neighbor the existing Ravenswood facility) would have attended if the hearing location had been more conveniently located. In order to address this concern, the applicant as well as DEC and DPS staff agreed to organize a public information hearing in that community. The ALJs have been informed that this meeting will take place at Jacob Riis House on April 17 at 7:00 p.m.

3 TR refers to the transcript of the April 5, 2001 issues conference.

4 While the petition of Queens indicated that this Borough was in moderate non-attainment for particulates, this was clarified at the issues conference as incorrect.

5 In addition, Subpart 257-3 of 6 NYCRR sets forth standards for control of particulates and prohibits accedences of these State ambient air quality standards.

6 As stated by DEC counsel Hairie at the issues conference, there is no guidance on interpretation of this section and little precedent. Citing to In re Inter-Power of New York, Inc. 5 E.A.D. 130, 144 (EAB 1994), in a case before the Environmental Protection Agency that raises the same alternatives analysis under Clean Air Act § 173(a)(5), 42 U.S.C. § 7503(a)(5), the Agency quoted "[p]etitioners may only prevail if the evidence in the record in support of their view clearly outweighs the evidence presented by the Region in support of its decision." In re Campo Landfill Project, NSR Appeal No. 95-1 (June 19, 1996) (emphasis in original) (petitioners here challenged site selection of landfill based upon its location over a sole source aquifer). The Agency made clear in this decision that it was only likely to remand where the analysis was not performed at all unless those favoring a different outcome show how the evidence clearly outweighs the choice made.

7 Interestingly, and as pointed out at the issues conference, in its issues submission in the Article X proceeding, Queens raises a concern regarding visual impacts related to stack height.

8 At the end of the issues conference discussion on stack height, Mr. Weinberg noted that Queens finds that the balancing examination provided for in 6 NYCRR § 231-2.4(a)(ii) should also be considered with respect to whether the applicant has chosen the appropriate height for this structure. However, Queens did not provide any further information on this matter to demonstrate that the applicant has failed to consider alternatives pursuant to this regulation. Rather, the analysis in the PSD application provides a specific rationale for the stack height that went unchallenged by the intervenors.

9 And, as noted above, at pages 10-11, in Con Ed, Associate Examiner O'Connell also found SCONOx to be an appropriate subject for a hearing based upon this section of Part 231. But, the facts are distinguishable because Manhattan is not in attainment for particulates.

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